by: Arushi Gupta ,School of law, Lovely professional university, BBA LLB (1 year)
Marriage is not a license for sexual coercion; it is a commitment to mutual respect and consent.
UNDERSTANDING THE CONCEPT OF MARITAL RAPE
The Latin word "rapere," which means "to steal or carry off," is where the word "rape" first appeared. It refers to the common practice of ancient Romans to kidnap their wives from other tribes. The very essence of crimes against humanity includes the rape of women, which is ingrained in human evolution. Ancient texts frequently make reference to acts of spousal rape. Inhumane crimes against women persist in modern times, affecting people of all nations, societies, faiths, cultures, and ethnicities.
Marital rape is the type of domestic violence where the sexual intercourse takes place without the consent of the partner, or it can be said the sexual intercourse is forced. It can take many different forms, such as physical abuse, threats, or situations in which the victim is powerless to provide permission. Due to societal standards, stigma, and the judicial system's refusal to acknowledge it as a crime, marital rape continues to be one of the most common types of domestic abuse, despite its prevalence. Marital rape is a grave violation of the two fundamental pillars of marriage i.e. trust and consent. They are the two pillars that are the basic foundation of marriage. It shatters the sanctity of marriage and leaves the victim with deep psychological and physical scars that are almost impossible to heal.
The concept of marital exemption originated from the presumption that a woman who marries gives her husband an unrestricted licence to have sex with her whenever he desires it. This view was described by Sir Matthew Hale (1609-1676) when he wrote that “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”.
HISTORY OF MARITAL RAPE
The idea that males are superior to women served as the foundation for the previous understanding of the husband and wife relationship. Men should have been given more control and respect in families when they are the primary breadwinners and women are subordinated. Regardless of the woman's own preferences, likes, dislikes, wishes, or desires, her husband's control over her body was regarded as a marital right.
THE CALLS FOR LAWS PROHIBITING MARITAL RAPE
The demand for the criminalization of marital rape in India has been growing, fuelled by rights activists, legal scholars, and victims of marital rape. They argue that the current laws are based on patriarchal norms and they deny women their basic fundamental rights to life, dignity, and bodily integrity. They also point to international norms, where marital rape is criminalized in 150 countries, as evidence of India’s need to reform its laws. The fight for the criminalization of marital rape is not just about legal reform, but about challenging societal norms and attitudes towards women and their rights within marriage.
EXESTING LAWS IN INDIA AND THEIR LIMITATIONS
The laws pertaining to marital rape in India are complicated and sometimes conflicting. Section 375 of the Indian Penal Code (IPC) specifies rape, although it does not include acts of sexual intercourse between a man and his wife as long as the woman is not younger than fifteen. The age old beliefs that a wife is her husband's property and that marriage grants an open license to sex are the foundation of this exemption for marital rape. This exception perpetuates gender inequity and patriarchal traditions while failing to shield women from sexual assault in marriage.
JUDICIAL PRECEDENTS
SAKSHI Vs. UNION OF INDIA (2004)
In this case, an NGO named Sakshi filed a public interest petition with the Indian Supreme Court, requesting that the term "sexual intercourse" be interpreted flexibly and that all forms of penetrative sexual assault be included in the definition of rape. In this instance, the learned counsels' written submissions and arguments made reference to the exemption from marital rape.
The Supreme Court denied to consider the petition, citing the doctrine of stare decisis. To make the trial process more victim-friendly, the Court did, however, issue a number of directives.
INDEPENDENT THOUGHT Vs. UNION OF INDIA (2017)
An NGO advocating for children's rights, Independent Thought, filed a public interest lawsuit in the Supreme Court of India in this case, arguing that Section 375 of the IPC's Exception 2 violates the rights of married girl children between the ages of 15 and 18 and amounts to husband rape. In the historic judgement, the Supreme Court struck down Exception 2 to Section 375, IPC, as unconstitutional. According to this section, an act of forcible sex by a husband on his unwilling wife who is not below 15 years of age is not an act of rape. The judgement makes sexual intercourse by a husband without the consent of his wife, who is under 18 years of age, a crime.
REASON TO MAKE IT AN OFFENCE
Achieving real equality between men and women requires first ensuring that women have complete autonomy over their bodies. Statements like "No means No" are crucial, as the consent matters in the marriages. Rape is a serious violation of women's rights, regardless of whether it is committed by a husband or a stranger. It is a tool used to intimidate and control women, and it will remain an expression of male dominance and misogyny until it is stopped.
CONCLUSION
Rape is regarded as the most heinous crime against human dignity, the most repugnant of all crimes, and a crime without end. Whether the woman is married or not has no bearing on the outcome. Furthermore, this horrible crime dehumanises women by treating them as nothing more than objects to be used for physical pleasure when it occurs inside the four walls of a married household. By shielding husbands from prosecution, the legislature's goal of protecting women and punishing those who commit the barbaric act of rape is thwarted. The fear of false complaints cannot be a reason to proscribe protection to those who have been suffering in these abusive traps from years. The shift in a woman's status from property to a full-fledged person with rights and the state's obligation to defend and protect those rights makes the legal system re-evaluate a lot of its tenets and practices. The time has come to realize that no legal, political, or moral justifications exist to allow a man to use force to invade his wife’s bodily privacy.
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